An autopsy of a former employee's claim that his termination was in retaliation for his reporting coworker misconduct and illegal on-the-job activity

Plaintiff-Appellant [Plaintiff] initiated litigation pursuant to 42 U.S.C. §1983, alleging a violation of his First Amendment rights by his former employer, the City of New York[City].

Plaintiff claimed that as a result of his reports to supervisors, he became “the victim of a concerted retaliatory attack by supervisors and coworkers who were aware that he had blown the whistle.” 

The alleged retaliation included being transferred to the day shift after he had worked the night shift for seventeen years, which caused a significant reduction in his available overtime hours. Plaintiff contended that he was also subjected to workplace hostility, threats, and false accusations of wrongdoing. Plaintiff also alleged that in one particular incident, he was "assaulted by a coworker in retaliation for his reports and required medical treatment for his injuries."

The City initiated an Office of Administrative Trials and Hearings [“OATH”] disciplinary hearing. The OATH  Administrative Law Judge issued a report recommending termination of Plaintiff’s employment because of his “uncivil, insubordinate, and threatening behavior.” The Commissioner of DEP adopted the recommendation of the ALJ and ordered Plaintiff's termination. Plaintiff subsequently commenced a civil action changing his dismissal from his position.

The key element in the federal district court's dismissing Plaintiff's complaint: the court found that Plaintiff “fail[ed] to allege adequately that he spoke as a citizen on a matter of public concern as opposed to speaking as an employee about improper workplace conduct.” 

Citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, the U.S. Court of Appeals, Second Circuit, said it agreed with the district court's ruling, explaining "To survive a motion to dismiss, a complaint must allege 'enough facts to state a claim to relief that is plausible on its face.'”

Further, said the Court of Appeals, "To state a First Amendment retaliation claim, a plaintiff must plausibly plead that: “

(1) his speech or conduct was protected by the First Amendment; 

(2) the defendant took an adverse action against him; and 

(3) there was a causal connection between this adverse action and the protected speech.* 

In addition, opined the Circuit Court, "To determine whether a public employee’s speech is protected, courts must decide “whether the employee spoke as a citizen on a matter of public concern"**.

The Circuit Court concluded that Plaintiff''s reports of coworker misconduct were not about a matter of public concern. To establish a First Amendment claim, the plaintiff must do more than allege that the “sheer nature” of his and his colleagues’ work was connected to the public’s safety, and thus a matter of public concern.

In this appeal the Circuit Court's decision states that Plaintiff did not "actually allege that the misconduct contributed to unsafe drinking water or that it impacted public health and safety." 

Further, opined the Court, intoxicated employees at a sewage treatment facility certainly could take actions to harm the public’s safety, but "the sparse allegations in [Plaintiff’s] Amended Complaint [did] not allege any facts allowing the Court to draw the inferences, noting Plaintiff suggests, and his complaint contains but a single sentence concerning the intoxicated employees, which alleged “[M]any of the employees ... would consume alcohol and attend work while in a state of intoxication, thereby impeding their ability to adequately perform their job, which is an essential function to maintain public health.” 

In the words of the Court, "This conclusory assertion that the intoxicated employees’ jobs were essential to maintaining public health does not allow the Court to make a reasonable inference — or any inference — about how the employees’ intoxication endangered public health or were the subject of matters of public concern."

The Circuit Court also noted that Plaintiff's grievances were not made in his capacity as a citizen and his Amended Complaint "is devoid of any assertions articulating the nature of his job responsibilities and how his complaints fell outside of those duties."

Thus, because Plaintiff failed to adequately allege either that his reports about individual employees’ misconduct were made in his capacity as a citizen or that his complaints pertained to a matter of public concern — both of which are required to pursue his First Amendment claim, the Circuit Court of Appeals concluded that Plaintiff failed to allege a plausible retaliation claim.

* See Matthews v. City of New York, 779 F.3d 167, [quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267].

** See Garcetti v. Ceballos, 547 U.S. 410.

Click HERE to access the Circuit Court's decision posted on the Internet.

 

New York State Comptroller DiNapoli releases municipal and school audits

On March 20, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the full audit.

New York State Comptroller Thomas P. DiNapoli today announced the following local government and school audits were issued.

City of Salamanca – Collections (Cattaraugus County)

The city comptroller’s collections were not always accurately recorded and because adequate collection records were not always maintained, auditors could not determine whether deposits were generally made in a timely manner. Auditors reviewed 29 deposits totaling nearly $2 million that consisted of 1,835 entries made during the audit period and determined: 1,759 entries lacked a duplicate press-numbered receipt which precluded them from determining whether deposits were made in a timely manner. Another 34 entries totaling approximately $50,000 did not have the correct form of payment (cash or check) listed in the collection records and 26 entries totaling approximately $18,000 did not have either the correct check number included on the collection records, or no check number was listed at all. Auditors found no collections were lost, misused or misappropriated, but because complete and reliable collections were not always maintained, there is an increased risk of city collections being lost, misused or misappropriated.

 

Piseco Common School District – Authorized Investments (Hamilton County)

District officials did not invest in accordance with statutory requirements. As a result, district investments were at an increased risk of loss. District officials did not adhere to the district’s investment policy and invested $35,000 in an investment account that is not statutorily authorized. The board re-adopted its investment policy annually but did not ensure the district’s investments complied with the policy’s list of eligible investments. In addition, the board did not develop procedures to address investment requirements.

 

Village of Afton – Claims Auditing and Disbursements (Chenango County)

The board did not properly audit claims, and as a result, payments were made prior to audit, for unsupported claims and for inappropriate purposes. Of the 98 claims totaling $155,528 reviewed: 53 claims totaling $13,356 were paid prior to audit and one claim totaling $793 did not include adequate supporting documentation, such as itemized receipts. The village reimbursed the former mayor for two payments totaling $1,500 for the village’s accounting software that she paid for with her personal credit card. The village should not reimburse anyone other than current village officials or employees. In addition, auditors reviewed 50 disbursements totaling $11,480 and determined that the board did not properly monitor non-payroll disbursements. As a result, there is an increased risk that errors or inappropriate transactions could occur and remain undetected.

 

Beacon Central School District – Information Technology (IT) (Dutchess County)

District officials did not ensure network user accounts were adequately managed. Unnecessary enabled network user accounts are additional entry points into a network and, if accessed by attackers, could potentially be compromised or used for malicious purposes. In addition to sensitive IT control weaknesses that were communicated confidentially to district officials, auditors found that officials did not disable 281 unneeded network user accounts of the 1,280 accounts reviewed. The accounts included 153 student accounts, 89 nonstudent accounts, and 39 shared and service accounts.

 

Copiague Union Free School District – Information Technology (Suffolk County)

District officials did not properly manage nonstudent network user accounts and financial software access controls. As a result, data and personal, private and sensitive information accessible by those accounts were at a greater risk for unauthorized access, misuse or loss. Auditors found that officials did not disable 316 nonstudent network user accounts (24%) that were not needed, including two user accounts assigned to employees that left the district more than 17 years ago. In addition, the district did not ensure that employees had the appropriate access to the financial software necessary to perform their job functions or provide IT security awareness and data privacy training annually to all officials and employees with access to financial and other sensitive data.

 

OnTECH Charter High School – Information Technology (Onondaga County)

School officials did not ensure IT systems were adequately secured and protected against unauthorized use, access and loss. In addition to sensitive IT control weaknesses that were communicated confidentially to officials, the board and officials did not adequately manage user accounts and permissions. As a result, the six computers tested had unneeded user accounts and unnecessary administrative permissions. Officials also did not monitor Internet usage for compliance with the school’s acceptable use policy. As a result, there is an increased risk of school computers being exposed to malicious software. In addition, officials did not develop and adopt an IT contingency plan and provide staff with IT security awareness training.

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Judicial review of the cancellation of an offer of promotion alleged to have been the result of unlawful discrimination because of race

A federal district court for the Northern District of New York summarily dismissed Petitioner's claims for race discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), as well as his claims for disability discrimination under the Americans with Disabilities Act of 1990 (“ADA”) and the NYSHRL.

Petitioner had been an employee of the Albany Fire Department [AFD] since 1993, serving as a firefighter in a number of capacities until his promotion captain in 2010 when he was offered a provisional promotion to battalion chief, the third highest-ranking position at the AFD. The promotion was to take effect after a swearing-in ceremony.

Shortly before the ceremony, Petitioner was drinking, while off-duty, and became so intoxicated that first responders found him “incoherent". AFD subsequently rescinded the promotion offer it had made to Petitioner. Petitioner challenged AFD's action but a federal district court’s summary judgment dismissed his complaint. 

Petitioner appealed the district court's ruling, contending that he sufficiently established his claims for race discrimination. The United States Court of Appeals, Second Circuit, rejected Petitioner's appeal and, affirming the district court's decision, said:

1. "Here, the record supports the district court’s determination that the AFD was entitled to summary judgment on Plaintiff’s race discrimination claims";

2. "While Plaintiff purports to challenge the district court’s dismissal of his disability-related claims under the ADA and the NYSHRL, his briefing on appeal does not address either of those claims. Therefore, [Plaintiff] has abandoned any challenge to the dismissal of these claims";

3. Based on its independent review of the record, the Circuit Court concluded that "[Plaintiff] established a prima facie case of race discrimination ... as an African-American employee, is a member of a protected class; met his 'minimal' burden of presenting evidence that he 'possesses the basic skills necessary for performance of the' battalion chief position";

4. "[The] rescission of [Plaintiff's] promotion offer constitutes an adverse employment action ... [i]n addition to terminations of employment and demotions, failure to promote ... may also qualify as [an] adverse action";

5. Plaintiff "produced evidence from which a reasonable jury could find that his base pay and benefits would have been greater as battalion chief than as captain"; and

6. Plaintiff's allegation that he was “replace[d] ... with an individual outside [his] protected class” is sufficient to raise an inference of discrimination at the initial prima facie stage."

Turning to the arguments advanced by ADF in its defense, the Circuit Court opined that ADF "has articulated a legitimate, non-discriminatory rationale for rescinding [Plaintiff's] promotion offer. Before he was slated to become battalion chief, [Plaintiff] consumed at least seven pints of beer ... and proceeded to 'expos[e] himself' outside of a [public establishment], ... prompting first responders to call an ambulance for 'a very old male who [was] highly intoxicated and ... pooped on himself,' ... and who was 'incoherent with his pants down around his ankles'....”

Following that incident, said the court, "AFD determined that [Plaintiff’s] promotion to battalion chief would undermine the AFD’s internal morale and its public perception, as well as [Plaintiff’s] effectiveness as a leader."

In these circumstances, opined the Circuit Court of Appeals, "the AFD has stated a sufficient, non-discriminatory rationale for the adverse employment action" and "[Plaintiff] on the other hand, has failed to produce sufficient evidence showing either that the AFD’s proffered reason was false, or more generally, that discrimination was the real reason for the rescission."

Noting that Plaintiff contended that the AFD’s promotion of "a Caucasian employee, constitutes disparate treatment," the Circuit Court said it agreed with the district court that Plaintiff and his Caucasian employee were not similarly situated." The Caucasian employee "was promoted to captain in April 2020, years after he was arrested and charged with an aggravated DWI in 2017." Plaintiff, in contrast, "engaged in misconduct days before he was slated to become battalion chief. Only in [Plaintiff's] case, then, was the AFD faced with the prospect of promoting an employee who had just publicly humiliated himself and the AFD. Moreover, [Plaintiff] was slated for promotion to a more senior position (battalion chief), which involved being a shift commander in charge of several field companies and members of the AFD." 

Thus, opined the Circuit Court, "[Plaintiff] has not established that the circumstances of [the Caucasian employee's] promotion were so similar so as to give 'at least minimal support to [Plaintiff’s] claims that the [rescission] may have been based on race' ... discrimination.”

Finally, the Circuit Court said Plaintiff fails to establish a genuine issue of material fact as to whether he was treated less favorably than [the Caucasian employee] and even assuming they were similarly situated, [Plaintiff] "points only to the fact that the person ultimately selected to be battalion chief ... scored second on the civil service exam after [Plaintiff]".

In the words of the Circuit Court of Appeals, "No reasonable jury could discern from this record, taken as a whole, that the AFD rescinded [Plaintiff's] promotion offer due to his race. Accordingly, the district court properly dismissed [Plaintiff's] race discrimination claims."

Click HERE to access the Circuit Court of Appeals decision posted on the Internet.